Wednesday, March 25, 2015

The UOCAVA Voter - De Facto Disenfranchisement

The UOCAVA Voter - De Facto Disenfranchisement

Over a quarter of a million American citizens who lived overseas or were members of the American military attempted to vote in the 2012 General Election but were unable to be counted. The reasons for their failure are many, but antiquated absent voting procedures and arbitrary rules and deadlines are largely to blame. Increased use of modern technology, including the internet, will help.

Interest in making sure that Americans living abroad and service personnel located away from their homes can vote is at an all-time high. It is the rare public official who will make statements that might be perceived as advocating the disenfranchisement of someone in the armed services. Public opinion surveys show that the American population want their military to be able to vote, especially if overseas in a combat zone. The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986 and the Military and Overseas Voter Empowerment (MOVE) Act of 2009 brought about some level of standardization among the states but, even with such support, and despite considerable progress over the past half century, it is apparent that de facto disenfranchisement remains a problem. Work still needs to be done.

In 2013, President Obama established a Presidential Commission on Election Administration (PCEA). Part of the mission for that group was to "improve the experience of voters facing . . . obstacles in casting their ballots, such as members of the military [and] overseas voters." Among other things, the commissioners were directed to explore "voting accessibility for uniformed and overseas voters," particularly absent voting laws that might impact that population's ability to cast a ballot.

A number of individuals and organizations testified before the PCEA on many matters of importance to the UOCAVA voter. The main issues revolved around (1) how to register to vote while overseas or away from home, (2) how to get an unmarked ballot, and (3) how to return the marked ballot in time for it to be counted. While improvements are still necessary in the first two, the principal problem requiring serious work today is how to return the marked ballot to the local election official in time to be counted.

Of the 285,309 UOCAVA voters who wanted to vote but could not, many never got their ballot in the first place. Military personnel move a lot and often mail cannot follow them to their new station. Local election officials report as many as one-third of mailed UOCAVA ballots are returned as undeliverable.

Of those ballots actually marked by the voter and returned, the principal reason for rejection was that the ballot arrived too late. States have varying deadlines for accepting absentee ballots. While some permit the ballots to arrive as much as ten days after an election, others require the ballot to be in the day before or the day of the election. Such variance causes confusion among UOCAVA voters. Also, some counties are more successful than others in minimizing the number of UOCAVA ballots rejected. The common factor seems to be the number of personnel and the time allocated to resolving apparently disqualifying defects. Budgets matter.

The next most common reason for a ballot not being counted was a signature problem; no signature, wrong signature, or unreadable signature. With all military personnel having Common Access Cards (CAC), technology is needed to permit those voters to identify themselves electronically without need of a "wet" signature.

A smaller, but not insignificant, number of ballots were rejected due to no postmark. Given that some military mail may not have a postmark, local election officials need the authority to use other postal tracking data that is often attached to the mail to minimize rejection for this reason.

The Federal Post Card Application (FPCA) and the Federal Write-in Absentee Ballot (FWAB) are also sources of confusion among the UOCAVA voter. About one-third of all FWABs are rejected by local election officials, usually due to not having an FPCA on file – in other words, the voter failed to register. The PCEA recommends that all states accept the FWAB as a valid registration as well as a voting document. Education of the UOCAVA voter is clearly necessary.

The PCEA also recommended that states institute specialized websites to provide for online registration and access to the unmarked ballot. Some states are experimenting with electronic return of marked ballots – fax, email, or web delivery. 

While no credible evidence exists to substantiate charges that any groups are taking active steps to disenfranchise the military and overseas voter, it remains a fact that the UOCAVA voter has a more difficult time voting than do citizens living at home. More work is required on the part of legislators in clearing the way for an easier path to participation in all elections. We can’t permit a quarter of a million UOCAVA voters’ votes to go uncounted in our next election.
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For more details, see Donald S. Inbody. 2015. "Voting by Overseas Citizens and Military Personnel," Election Law Journal 14 (1), 54-59. Visit the Election Law Journal online for this article and others about the Presidential Commission on Election Administration. Contact the author at inbody@txstate.edu.